I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, July 03, 2008

Obama's new statement on FISA

Barack Obama has issued a new statement on FISA in response to the growing number of his supporters objecting to his position. Genuine credit to him for being responsive this way and for having his site be a forum for disagreement among his supporters and himself. Providing a forum for those sorts of debates is a sign of a secure and healthy campaign.

Despite that, the statement contains many dubious claims and, in a couple cases, outright misleading statements. Worse, Obama's statement only addressed the objections to the telecom immunity provisions of the bill, while ignoring the objections to the (at least) equally pernicious new warrantless eavesdropping powers the bill authorizes. Taking Obama's claims in order:

It grants retroactive immunity to telecommunications companies that may have violated the law by cooperating with the Bush administration's program of warrantless wiretapping. This potentially weakens the deterrent effect of the law and removes an important tool for the American people to demand accountability for past abuses. That's why I support striking Title II from the bill, and will work with Chris Dodd, Jeff Bingaman and others in an effort to remove this provision in the Senate.

Obama says he will vote to remove immunity from the bill, but he knows full well that this effort will fail and that the final bill will have telecom immunity in it. The bottom line is that he will nonetheless end up voting for this bill with immunity in it even though he previously vowed to support a filibuster of "any bill" that contains retroactive immunity. Put another way, Obama claims he opposes telecom immunity but will vote for a bill that grants it.

But I also believe that the compromise bill is far better than the Protect America Act that I voted against last year.

Whether it's better than the Protect America Act (PAA) is irrelevant. The PAA already expired last February. If the new FISA bill is rejected, we don't revert back to the Protect America Act. We just continue to live under the same FISA law that we've lived under for 30 years (with numerous post-9/11 modernizing amendments). So whether this bill is a mild improvement over the atrocious, expired PAA is not even a coherent reason to support it, let alone a persuasive one.

The exclusivity provision makes it clear to any president or telecommunications company that no law supersedes the authority of the FISA court.

The current FISA law -- as a federal court ruled just yesterday -- already has the same exclusivity provision, and it did nothing to stop the President and the telecoms from breaking the law anyway. The fact that Obama is now going to vote to end the telecom lawsuits and immunize the lawbreakers means that there will be no consequences for their having broken the law. How can Obama possibly claim that the "exclusivity" provision in the new FISA bill has value when the current law that they broke already has the same provision?

As I wrote today:

They're presenting as a "gift" something you already have, and telling you that you should give up critical protections in exchange for receiving something that you already have -- namely, a requirement that the President comply with eavesdropping laws. What they're doing is tantamount to someone who steals your wallet, takes all the money out, gives the empty wallet back to you, and then tells you that you should be grateful to them because you have your wallet.

Exclusivity is obviously no reason to change the current FISA law since it already has exclusivity in it. Obama:

In a dangerous world, government must have the authority to collect the intelligence we need to protect the American people.

The government already has "the authority to collect the intelligence it needs to protect the American people." That authority is called FISA, which already allows the Government extremely broad authority to spy on any suspected terrorists. The current law results in virtually no denials of any spying requests. So how can Obama -- echoing the Bush administration -- claim a new law is needed to provide "the authority to collect the intelligence we need to protect the American people" when the current FISA law already provides that?

But in a free society, that authority cannot be unlimited. As I've said many times, an independent monitor must watch the watchers to prevent abuses and to protect the civil liberties of the American people. This compromise law assures that the FISA court has that responsibility.

This is just false. The new FISA bill that Obama supports vests new categories of warrantless eavesdropping powers in the President (.pdf), and allows the Government, for the first time, to tap physically into U.S. telecommunications networks inside our country with no individual warrant requirement. To claim that this new bill creates "an independent monitor [to] watch the watchers to prevent abuses and to protect the civil liberties of the American people" is truly misleading, since the new FISA bill actually does the opposite -- it frees the Government from exactly that monitoring in all sorts of broad categories.

Why else would Bush and Cheney be so eager to have this bill if it didn't substantially expand the Government's ability to eavesdrop without warrants?

The Inspectors General report also provides a real mechanism for accountability and should not be discounted. It will allow a close look at past misconduct without hurdles that would exist in federal court because of classification issues. The recent investigation (PDF) uncovering the illegal politicization of Justice Department hiring sets a strong example of the accountability that can come from a tough and thorough IG report.

Having the Executive Branch investigate itself for alleged lawbreaking is not "oversight." In our system of Government, government officials and corporations which are accused of breaking the law are subjected to courts of law -- just like everyone else -- not to "investigations" by agencies within their own branches of government with very limited powers. Marcy Wheeler has more on the extremely limited capacity of Inspectors General to investigate lawbreaking at high levels of government.

The ability to monitor and track individuals who want to attack the United States is a vital counter-terrorism tool, and I'm persuaded that it is necessary to keep the American people safe -- particularly since certain electronic surveillance orders will begin to expire later this summer. Given the choice between voting for an improved yet imperfect bill, and losing important surveillance tools, I've chosen to support the current compromise.

This is the most misleading part of Obama's statement. The "certain surveillance orders [which] will begin to expire later this summer" -- that Obama claims we must maintain -- are warrantless eavesdropping orders that were authorized by the PAA, which Obama voted against last August. As I asked the other day:

Had Obama had his way, there never would have been any PAA in the first place, and therefore, there never would have been any PAA orders possible. Having voted against the PAA last August, how can Obama now claim that he considers it important that the PAA orders not expire? How can he be eager to avoid the expiration of surveillance orders which he opposed authorizing in the first place?

Moreover, the Government already has "the ability to monitor and track individuals who want to attack the United States" under the current FISA law. Citing the need for such monitoring in order to justify this new FISA bill is just pure fear-mongering ("you better let us eliminate FISA protections if you want us to keep you safe from the Terrorists"). Obama has always said in the past that "the FISA court works." When did he change his mind and why?

I do so with the firm intention -- once I'm sworn in as president -- to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.

This expression of Obama's "intention" has so many equivocations and vague claims as to be worthless. In a society that lives under the rule of law, government officials and corporations which break our laws are held accountable by courts of law, not by vague promises from politicians of some future "review" and "recommendation" process grounded in claims that we can trust the Leader to do the right thing, whatever he decides in his sole discretion and infinite wisdom that might be. That is no consolation for blocking courts from adjudicating whether laws were broken here, which is what the bill that Obama supports will do.